Citation Nr: 9930148 Decision Date: 10/22/99 Archive Date: 10/29/99 DOCKET NO. 94-41 060 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to an increased rating for residuals of encephalopathy with an anxiety disorder and headaches, currently rated 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kimberly E. Harrison Osborne, Counsel INTRODUCTION The veteran had active military service from August 1955 to August 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the RO. The veteran initially appealed a 1991 RO decision which denied an increase in a 10 percent rating for service-connected residuals of traumatic encephalopathy with headaches. An RO decision later in 1991 found that an anxiety and panic reaction was part of the service-connected condition; and the RO assigned a 30 percent rating for service-connected residuals of traumatic encephalopathy with headaches and with an anxiety and panic reaction. A 1992 RO decision proposed to sever service connection for an anxiety and panic reaction, and proposed to reduce the rating to 10 percent for service-connected residuals of traumatic encephalopathy with headaches. A 1993 RO decision carried out such proposals. In January 1997, the Board remanded to the RO the issue of an increase in a 10 percent rating for service-connected residuals of traumatic encephalopathy with headaches, as well as the issue of entitlement to restoration of service connection for anxiety and panic reaction as part of the condition. In November 1998, the RO restored service connection for an anxiety disorder as part of the veteran's service-connected residuals of traumatic encephalopathy. As a result, the issue is no longer before the Board. In November 1998, the RO also increased the rating to 50 percent for service- connected residuals of traumatic encephalopathy with an anxiety disorder and headaches. The veteran has not indicated he is satisfied with this rating. Thus, the claim is still before the Board. AB v. Brown, 6 Vet.App. 35 (1993). FINDING OF FACT The veteran's service-connected residuals of encephalopathy with an anxiety disorder and headaches are of a severity to preclude him from obtaining or retaining employment. CONCLUSION OF LAW The criteria for a rating of 100 percent for residuals of encephalopathy with an anxiety disorder and headaches have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Code 9400 (1996); 38 C.F.R. § 4.130, Codes 9400 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran had active military service from August 1955 to August 1959. His service medical records show that in April 1959, he was in a motor vehicle accident. He sustained multiple lacerations of the face, a cerebral contusion, and an impacted fracture of the neck of the right scapula. After the injury, he demonstrated spastic right hemiparesis which later improved. A July 1959 discharge examination was negative for any defects besides scars of the nose, fourth toe of the left foot, and above the right eye. A September 1959 VA neurological examination revealed a diagnosis of traumatic encephalopathy with right hemiparesis, no residuals. In December 1959, the RO granted service connection for traumatic encephalopathy, no residuals, and assigned a noncompensable rating. An April 1966 VA examination revealed a diagnosis of brain trauma with residual headaches. In an April 1966 rating decision, the RO granted an increased rating to 10 percent for residuals of traumatic encephalopathy with headaches. Private medical records from 1978 and 1979 (obtained after the Board's remand in the present appeal) note the veteran had a history of a head injury in service, and he was currently diagnosed and treated for organic brain syndrome with cerebral trauma and behavioral reaction. In November 1990, the veteran filed for an increased rating for residuals of encephalopathy. The veteran stated, in essence, that the residuals of his service-connected traumatic encephalopathy included headaches, a nervous condition, loss of temper and forgetfulness. He stated that after working for the postal service for 31 years, he found that he could no longer do his job. He stated he was advised by a doctor and his boss to apply for disability retirement. He indicated he was granted disability retirement benefits. In support of his claim, he submitted VA outpatient treatment reports from 1985 to 1991. These reports show treatment for anxiety and other symptoms, particularly after another head injury in a 1985 vehicle accident. The records note he had sessions with a social worker and a psychiatrist. Issues discussed pertained to the veteran's complaints of anxiety, nervousness, anger, and violence. The veteran also discussed issues involving his claim for disability retirement benefits from the post office. It was noted that the veteran took medication due to his psychiatric complaints. The records also show he periodically complained of headaches which varied in its intensity. In 1990, the veteran stated he had a good relationship with his wife but had stress related to his step daughter. He related he was starting to have problems at work and had problems concentrating. He reported he suffered from forgetfulness, nervousness, and irritability. He stated that because of his anxiety symptoms he took several days off of work. He reported work was his major stressor. Reports of individual and group sessions in 1990 and 1991 reveal the veteran was treated for anger outburst, anxiety, and family related issues. At times it was reported he was making progress and he was not "blowing up" as much. In 1991, he reported his claim for disability retirement had been granted and he was doing better since he did not have to work. In May 1991 and June 1991, the RO denied the claim for an increase in a 10 percent rating for service-connected residuals of traumatic encephalopathy with headaches. In July 1991, the veteran submitted a January 1991 letter from a VA psychologist, addressed to the U.S. Office of Personnel Management, related to the veteran's application to retire on disability from the post office. The psychologist stated that the veteran's case warranted a determination that he was entitled to disability retirement. The psychologist stated: Criterion 1: [The veteran's] frequent explosiveness, loss of concentration and overall acute anxiety or panic reaction to minor stressors make him incompatible with either useful service or retention in his current position. His acute symptoms seen during his treatment at the VA Hospital, Montrose, clearly indicate that his continued absence from his position is worsened. Criterion 2: [The veteran's] fragile defense against explosive behavior and acute panic reactions can only be worsened by his continuing to work. The cumulative effect of the 30+ years of stressors and especially those experienced in his current position make his return to work anti-therapeutic. Criterion 3: [The veteran's] strong convictions to continue working and his loyalty to the [U.S. Post Office] had motivated him to continue his performance, attendance and conduct on the highest level capable before his breakdown. However, this pressure to overcome his anxiety reactions and acute panic symptoms on a daily basis will lead to further decompensation of [the veteran's] health and will then be clearly evidenced in his performance, conduct and attendance. This should be prevented for the [veteran's] sake and his future quality of life. Criterion 4: There has been no evidence in [the veteran's] treatment at the Anxiety Disorders Clinic at the VA Hospital that his condition will be sufficiently improved or expected within one year from onset to his current stressful position. Criterion 5: [The veteran's] acute panic attack symptoms, occasional memory loss, disorientation, confusion and ultimately tendencies toward explosive behavior clearly substantiate his inability to work at this time. In a statement received in July 1991, the veteran stated he suffered from headaches, loss of memory, a nervous condition, and had flare ups of his temper, since his accident in service. In November 1991, the RO granted an increased rating to 30 percent for service-connected residuals of traumatic encephalopathy with headaches and anxiety and panic reaction. In a January 1992 statement, the veteran stated he was forced on disability retirement due to his service-connected residuals of a traumatic encephalopathy. A February 1992 RO decision proposed to sever service- connection for anxiety and panic reaction (the RO found such was due to the post-service 1985 vehicle accident and head injury), and proposed to reduce the rating to 10 percent for service-connected residuals of traumatic encephalopathy with headaches. During a September 1992 RO hearing, the veteran stated he occupied himself by doing household chores. He stated at times his nerves would prevent him from even doing household chores. He related he was hard to get along with. He reported receiving treatment from psychiatrists and psychologists. The veteran's representative argued the veteran's symptoms precluded him from engaging in any form of gainful employment and that the veteran's disability warranted a 100 percent rating. In September 1992, the RO received a letter from a VA psychologist. The psychologists stated the veteran was in treatment at the mental hygiene clinic for his generalized anxiety, headaches, quick temper, and memory lapse which dated back to 1959. He related the veteran reported his symptoms increased over the years until they became so debilitating and upsetting that he was forced to retire early with this disability. VA outpatient treatment reports in 1992 shows that the veteran was being treated for anxiety, explosive rage outbursts, and for problems concentrating and completing task. The therapist indicated psychotherapy was helping the veteran cope with stress and that he was doing better. A January 1993 RO decision carried out the prior rating proposals; service connection for an anxiety and panic reaction was severed, and a 10 percent rating was assigned for service-connected residuals of traumatic encephalopathy with headaches. In a March 1993 letter, a VA psychologist stated the veteran continued to attend weekly individual and group psychotherapy. He reported the veteran had made a great effort to control his labile affect and used problem solving skills to reduce stress, but had remained very vulnerable to stress symptoms. He reported the veteran still had much difficulty adjusting to social and work settings where there was a high level of interaction. He reported the veteran made a great effort in attempting to keep his symptoms under control but this should not be perceived as due to an improvement in the service-connected condition. An August 1993 letter signed by a VA psychologist and a VA psychiatrist reveals they advised the veteran to retire in 1990 from the U.S. Postal Service to avoid further mental and emotional breakdown. They stated the veteran continued to be unemployable due to his inability to handle job stress and due to concentration difficulties, memory difficulties and labile affect-mood. They reported the veteran's stress disorder led to his breakdown in 1990. They related the veteran continued to be treated in group psychotherapy, individual psychotherapy, and pharmacotherapy. They stated the veteran's acute symptoms had diminished in the last year, partially due to the low stress environment he had set up for himself at home and his current treatment program. They stated employment for the veteran was not recommended at this time. When treated between 1993 and 1996, the veteran was noted to have problems with anxiety with explosive outbursts. Sessions involved discussions regarding family issues. The records note that the veteran was taking medication due to anxiety symptoms. In December 1996, he was stable on current prescription except for periodic anxiety attacks. In an April 1997 letter, the veteran stated he worked for the post office from 1960 until 1991. He related he was awarded disability retirement benefits. He reported that when he worked for the post office he used 90 percent of his sick leave due to his service-connected residuals of the 1959 accident. He stated he could not take any pressure or work at any job. He stated when he was stressed he got confused and it became hard for him to do simple things or remember simple things. He reported he fell apart when pressured. A VA psychologist stated, in a later dated in May 1997, the veteran continued to be treated at the mental hygiene clinic. He stated the veteran was advised to retire from the U.S. Postal Service in 1990 to avoid further medical and emotional breakdown. He reported the veteran retired in 1991 and continued to be unemployable due to his inability to handle job stress, concentration difficulties, memory difficulties and labile affect-mood. The psychologist stated the veteran's symptoms remained diminished due to the low stress environment that had been set up for him at home. The psychologist reported the veteran remained unemployable in terms of gainful employment. Outpatient treatment reports from 1997 show the veteran continued to attend group and individual counseling sessions. He was noted to complain of being tense, anxious and depressed. He discussed the difficulties he had in taking care of family members. On November 1998 VA psychiatric examination, the veteran stated his main problem was temper outbursts which were 3 to 4 times a week. He stated he would yell at others and could not control his temper. He reported he had sleep disturbance. He denied any inpatient care for his psychiatric problems. He related he was seen weekly at the VA hospital with adjunctive psychopharmacological treatment and was prescribed Buspar and Trazadone. He reported he was treated by a social worker. He stated he had not worked since the early 1990's when he had a nervous breakdown. He related he spent his time at home reading and watching television. He claimed he had difficulty concentration. He complained of memory problems. The examiner noted the veteran did not have classic panic attacks with palpitations or feelings of suffocation, but did complain of chronic anxiety and tension with some sweating and mild tightening. The veteran stated he had severe headaches which he usually experienced daily. He denied symptoms of PTSD, although he reported he had occasional nightmares of his time in service and startled somewhat easily. He denied avoidant symptoms or other associated symptoms such as intrusive recollections. The examiner stated though the veteran did not meet the criteria for a major depression disorder, he did appear to meet the criteria for generalized anxiety disorder with excessive anxiety and worry. The examiner stated the veteran had difficulty controlling his anxiety and that his anxiety would bother him for several weeks at a time. He claimed having feelings of restlessness, difficulty concentrating, irritability, muscle tension, and sleep disturbance. The examiner reported the above symptoms caused the veteran significant distress and could not be attributed to any other disorder, except as a residual of his encephalopathy. Mental status examination revealed the veteran was oriented to person and place. He recalled 1 out of 3 words correctly but when cued recalled the other words after about a 5 minute interval. He denied obsessive or ritualistic behavior but he did note things would bother him for up to a week at times. His speech was somewhat vague but not irrelevant or illogical. He denied symptoms of true panic. While he occasionally had a depressed mood, he did not meet the full criteria for depression. The examiner stated the veteran's anxiety was related to his encephalopathy. The diagnosis was generalized anxiety. He was assigned a global assessment of function (GAF) score of 52. In November 1998, the RO restored service connection for an anxiety disorder, and assigned a 50 percent rating for service-connected residuals of an anxiety disorder and headaches. He was rated under the code pertaining to an anxiety disorder. In April 1999, the veteran's representative argued the veteran was entitled to a separate rating for anxiety and a separate rating for headaches as part of the residuals of encephalopathy. II. Analysis The veteran's claim for an increase in a 50 percent rating for his service-connected residuals of encephalopathy with an anxiety disorder and headaches is well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. With regard to the representative's contention that the veteran is entitled to a separate 10 percent rating for headaches as a residual of encephalopathy, the Board notes that the provisions of 38 C.F.R. § 4.124a, Code 8045 prohibit a separate rating. Code 8045 pertains to brain disease due to trauma and provides that purely subjective complaints such as headaches dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma). This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Hence, a separate rating for headaches will not be assigned. The Board finds that the most appropriate rating method is to rate the service-connected condition as a psychiatric disorder. During the course of the veteran's appeal, the regulations pertaining to rating psychiatric disabilities were revised. Generalized anxiety disorder under 38 C.F.R. § 4.132, Code 9400 (effective prior to November 7, 1996) is rated 50 percent when the ability to maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is assigned when the ability to establish and maintain effective or favorable relationships with people is severely impaired, and there are psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain and retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; demonstrably unable to obtain or retain employment. See Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that the criteria in 38 C.F.R. § 4.132 for a 100 percent rating are each independent bases for granting a 100 percent rating). On November 7, 1996, the rating criteria for mental disorders were revised and are now found in 38 C.F.R. § 4.130, including Code 9400 for a generalized anxiety disorder. The revised criteria provide that a 50 percent rating is to be assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As the veteran's claim was pending when the regulations pertaining to psychiatric disabilities were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the prior or current rating criteria may apply, whichever are most favorable to the veteran. A review of the voluminous medical records from 1990 to 1998 show the veteran receives extensive treatment due to his service-connected anxiety disorder. He complains that his service-connected residuals of encephalopathy, which primarily involve the anxiety disorder, interfere with his ability to socialize with others and work. The record demonstrates that he has not worked full-time since 1991 when he worked for the post office. The record also demonstrates that he was awarded disability retirement benefits from the post office due to his anxiety disorder. With respect to his social adaptability, the record shows that the veteran is married and has a good relationship with his wife. During a September 1992 RO hearing, he reported he was hard to get along with. Medical reports throughout the 1990's show the veteran had problems with anger, rage, and temper outbursts. In March 1993 a VA psychologist noted the veteran had difficulty adjusting to social settings. VA examination in 1998 reveals a GAF score of 52 which denotes no more than moderate social impairment. With respect to industrial adaptability, the Board again notes that the veteran last worked in 1991 for the post office. He had over 31 years of service at the post office. In January 1991, a VA psychologist reported the occupational impairment caused by the veteran's anxiety disorder. In short, he stated that the veteran's acute panic attack symptoms, occasional memory loss, disorientation, confusion and ultimately tendencies toward explosive behavior clearly substantiated his inability to work. In March 1993, a VA psychologist stated the veteran had much difficulty adjusting to work settings. In August 1993, a VA psychiatrist and psychologist stated they advised the veteran to retire in 1990 from the post office to avoid further mental and emotional breakdown. They reported the veteran continued to be unemployable due to his inability to handle job stress and due to concentration difficulties, memory difficulties and labile affect-mood. They indicated that the veteran's acute symptoms had diminished in the last year, partially due to the low stress environment he had set up for himself at home and his current treatment program. They concluded that employment for the veteran was not recommended at this time. In May 1997, a VA psychologist noted the veteran retired in 1991 and continued to be unemployable due to his inability to handle job stress, concentration difficulties, memory difficulties, and labile affect-mood. He stated the veteran remained unemployable in terms of gainful employment. A 1998 VA medical examination reports reveal the veteran had a GAF score of 52 (which represents the criteria for moderate impairment). Some of the evidence suggests that the veteran's anxiety disorder produces only moderate social and occupational impairment (see 1998 VA examination), and such evidence does not support an increase in the current 50 percent rating. On the other hand, there is evidence which is to the effect that his anxiety disorder as a residual of encephalopathy prevents him from obtaining or retaining employment, and this evidence supports a 100 percent rating under the old criteria. Johnson v. Brown, 7 Vet. App. 95 (1994). The Board finds that the evidence is approximately balanced on the question of whether the veteran is demonstrably unable to obtain or retain employment due to his anxiety disorder (the old criteria for a 100 percent rating) as a residual of encephalopathy and, after applying the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)), the Board concludes that the old 100 percent rating criteria have been met. Given that the veteran is entitled to the maximum rating of 100 percent for his anxiety disorder under the old criteria, there is no need to address the new criteria. Karnas, supra. ORDER An increased 100 percent rating for residuals of encephalopathy with an anxiety disorder and headaches is granted. L. W. TOBIN Member, Board of Veterans' Appeals